Keshva vs State

A.N. Venugopal Gowda, J.—The petitioner is being prosecuted for an offence punishable under Section 302 of IPC. Trial having begun, the prosecution has examined all its witnesses. The case is now at the stage of hearing of arguments by the learned Sessions Judge. An application filed under Section 311 Cr.P.C to recall PWs 1 to 16 for cross examination having been rejected by the learned Sessions Judge, Devanahalli vide order dated 25.09.2014 passed in SC No. 15001/2013, this petition was filed to quash the said order.

Learned Sessions Judge being of the view that the accused has been adopting delaying tactics and did not utilize the opportunity provided earlier, for cross examining the witnesses, has passed the impugned order.

Sri. H.R. Narayanaswamy, learned advocate, submitted that there being a communication gap between the petitioner and his learned advocate on record at the relevant point of time, cross examination of PWs 1 to 16 has not been done. He submitted that PWs 2, 6, 7, 8 and 10 and PWs. 13 and 17 being star witnesses to the prosecution, if not cross examined, would amount to denial of justice. Learned advocate submitted that on account of bonafide mistake committed by the petitioner and his learned advocate, there cannot be a situation where the star witnesses of the prosecution remain not cross examined. Learned counsel submitted that, he having entered appearance in the trial Court, if an opportunity is provided, the prosecution witnesses would be cross examined by him on the respective dates of their presence and that reasonable costs would also be paid to PWs.2, 6, 7, 8 and 10, on account of they being recalled. Learned advocate submitted that PWs.13 and 17 being official witnesses, no prejudice would be caused by recalling them for the purpose of cross examination.

Sri. B. Visweswaraiah, learned HCGP, having obtained instructions from the Investigating Officer and having contacted the learned Public Prosecutor appearing in the matter pending before the learned Sessions Judge, submitted that in order to meet the ends of justice, by subjecting the petitioner to pay reasonable costs to PWs.2, 6, 7, 8 and 10, the impugned order may be modified and recalling to the extent of PWs.2, 6, 7, 8, 10 13 and 17 may be allowed. Learned HCGP further submitted that if the petitioner does not utilize the opportunity, the petitioner may be put on notice that none of the said witnesses would be recalled again.

In Hanuman Ram Vs. The State of Rajasthan and Others, AIR 2009 SC 69 : (2009) CLT 50 : (2008) 11 JT 154 : (2008) 13 SCALE 155 : (2008) 15 SCC 652 , the object underlying in Section 311 Cr.P.C has been made clear by the Apex Court. It has been held therein, that the object of provision is to prevent failure of justice on account of mistake of either party in bringing on record the valuable evidence or leaving ambiguity in the statement of witnesses.

In Hoffman Andreas Vs. Inspector of Customs, Amritsar, (2000) 71 ECC 692 : (2000) 8 JT 155 : (2000) 10 SCC 430 , Apex Court has held that Court should adopt latitude and liberal view in the interest of justice since the court has unbridled powers in the matter, as enshrined in Section 311 Cr.P.C.

Even though there is a mistake on the part of learned advocate in not cross examining PWs.2, 6, 7, 8, 10, 13 and 17, by keeping in view the submissions made by Sri. Narayanaswamy, learned advocate appearing for the petitioner and the factual scenario, this petition deserves to be allowed in part.

Consequently, the impugned order, to the extent of rejection of prayer for recalling of PWs.2, 6, 7, 8, 10, 13 and 17 is set-aside. I.A. filed under Section 311 Cr.P.C before the learned Sessions Judge, to the extent of recalling of the aforesaid witnesses alone is allowed. As a consequence, PWs.2, 6, 7, 8, 10, 13 and 17 stand recalled. Process be issued to secure their presence for the purpose of cross examination. On the dates of respective appearance of PWs.2, 6, 7, 8 and 10, each one of them shall be paid costs of Rs. 1,000/- (Rupees one thousand only) by the accused. However, no cost need to be paid in respect of PWs.13 and 17. Cross examination of the said witnesses shall be completed by the accused on the respective date/s, the said witnesses are kept by the prosecution. The petitioner shall not cause any delay in the matter of conducting of the trial and disposal of the case. Since, the trial has begun long ago, learned Sessions Judge shall complete the trial and decide the case with expedition and within a period of four months from the next hearing date.